The Employment Tribunal (ET) has ruled in favour of plumbing and service maintenance organisation Pimlico Plumbers in an ongoing employment status case, dismissing the holiday pay claim lodged by former Pimlico Plumber worker Gary Smith.
The case, Pimlico Plumbers and Charlie Mullins v Gary Smith, involves holiday pay and unlawful deductions from wages, and was brought by Smith in August 2011, who worked for Pimlico Plumbers between August 2005 and April 2011 as a plumbing and heating engineer. Smith argues that he is owed £74,000 as a result of unpaid statutory annual leave.
Smith’s legal action also alleged unfair dismissal and discrimination on the basis of disability.
The initial tribunal decided that Smith had not been an employee and, therefore, could not claim unfair dismissal, but that he could be classed as a worker under the Employment Rights Act 1996 and Working Time Regulations 1998, and had been in employment for the purposes of the Equality Act 2010. As a worker, Smith is entitled to employment rights, such as holiday pay and the national minimum wage, which are not available for self-employed contractors.
The Supreme Court judgment was handed down on 13 June 2018 and confirmed that Smith is classed as a worker, as per the decision of the employment tribunal.
On 18 and 19 March 2019, Pimlico Plumbers and Smith attended the Croydon Employment Tribunal to decide the holiday pay and deductions claim; here, Pimlico Plumbers admitted the unlawful deductions claim of £336 but denied the payment of £74,000.
Jacqueline McGuigan, solicitor at TMP Solicitors, representing Smith, explained: “Pimlico [Plumbers] admitted that the leave was unpaid, but denied any payment was owed. [It] said that the claim was time barred because Mr Smith should have brought a tribunal claim within three months of each unpaid leave date starting from 2005, unless each leave date was taken within three months of the last as a ‘series’ of leave.
“The tribunal found that Mr Smith’s last holiday leave was on 4 January 2011, which was over the Christmas period. Mr Smith had a heart attack on 5 January 2011 and was hospitalised. Therefore, pursuant to the three-month tribunal time limit for lodging claims, his claim had to be lodged no later than 3 April 2011 so as to claim only the last two weeks [of] unpaid leave. At the time that Mr Smith brought his tribunal claim in 2011, the law operated differently and did not impose this three-month requirement between each leave period.
“Mr Smith did not know he was entitled to paid leave [while] he was employed by Pimlico Plumbers and so did not bring a tribunal claim for unpaid leave by 3 April 2011. He believed that at all times, because of the way in which the [organisation] was [operated], he was self-employed and not entitled to paid leave. Mr Smith says his contract with Pimlico [Plumbers] was terminated on 3 May 2011. After termination he brought a claim for unpaid holiday and disability discrimination.”
Smith is appealing the ET’s decision, while Pimlico Plumbers is considering reclaiming its tribunal costs from Smith and suing for reputational damages.
Charlie Mullins, chief executive officer at Pimlico Plumbers, said: “We’ve been through four hearings before this week, all the way to the UK Supreme Court, and each time we have insisted that Pimlico Plumbers has done nothing.
“While the Supreme Court deemed him to be a worker and entitled to associated rights, the tables have been turned and common sense prevailed in the actual Employment Tribunal and Mr Smith has been told that he wasn’t entitled to a penny.”
McGuigan added: “Mr Smith says he is extremely disappointed at the outcome after spending seven years going through the courts defending his legal right to be recognised as a worker.”